C. Natrajan
Vs. Ashim Bai & Anr [2007] Insc 1041 (11 October 2007)
S.B.
Sinha & Harjit Singh Bedi
(Arising
out of SLP (C) No.18129 of 2006) S.B. Sinha, J.
1.
Leave granted.
Appellant
herein filed a suit against the respondents claiming, inter alia, for the
following reliefs :
(a)
For declaration of plaintiffs title to the suit property;
(b)
For consequential injunction, restraining the defendants, their men, agents,
servants, etc. from in any manner interfering with the plaintiffs peaceful
possession and enjoyment of the suit property.
(c)
Alternatively, if for any reason this Honourable court comes to a conclusion
that the plaintiff is out of possession, for recovery of vacant possession of
the suit property;
(d)
Directing the defendant to pay the cost of this suit.
2. The
said suit was filed in the year 2001. Cause of action of the said suit was said
to have arisen in 1994 when the defendants allegedly trespassed over the suit
property. Respondent on or about 8.8.2001 filed an application under Order VII
Rule 11(d) of the Code of Civil Procedure praying for rejection of the plaint
on the premise that the suit was barred by limitation, inter alia, stating :
2.
I beg to submit that the Respondent/Plaintiff in the plaint paragraph 4 with
respect to the question of limitation has averred that he had the knowledge of
the mistake with regard to the boundaries in the sale deed only on 2.11.1998
for the purpose of satisfying the court to admit the plaint.
3. I
beg to submit that the averments are made knowing to be false. The following
admitted facts would clearly establish the same.
(a)
The plaintiff admits in paragraph 3 (3 and 3) that he had the defective title
on 24.11.1974.
He
further contended that mistake was repeated again on 14.9.1979. Such mistakes
even alter 2 decades has not been rectified by any instrument. The plaintiff
lost his right long before to rectify the alleged mistake. Now, he was misused
and abused this Honble Court and filed the suit after the period of
limitation.
(b)
The Respondent/Plaintiff filed the suit describing the suit property in
accordance to his sale deed dated 14.9.1979 before the District Munsif of Tambaram
in OS No.501 of 1994 on 28.3.1994. The said suit was filed for the relief of
permanent injunction based on the sale deed and possession of the sale property
alleging that he was in possession of the sale property. We have filed an
application in IA No.805 of 1994 on 8.4.1994 to vacate the interim injunction
granted in IA No.604 of 1994 filed by the Respondent/Plaintiff. We have clearly
pointed out that the main issue was the identification of the property. Hence
the issue was decided in the interim application by the learned district Munsif,
Tambaram on 27.6.1994. The learned District Munsif, Tambaram gave a clear
findings that the Respondent/Plaintiff has to identify the property.
(c)
The Respondent plaintiff had clear knowledge of the mistake with regard to the
boundaries not only on 8.4.1994 but also on 27.6.1994.
(d)
Therefore, the suit reliefs are barred by limitation. 3. In the counter
affidavit filed on behalf of the petitioner, it was stated :
This
respondent further submits the points for rejection of the plaint are
untenable.
This
respondent never admits that he had defective title in any of the paragraphs
much less in para 3 of the plaint. It is stated that the description with
regard to boundaries is only a mistake.
This
respondent submits that Order VII Rule 11(d) is not applicable to the facts of
this case. This suit is filed for declaration and for permanent injunction,
alternatively for recovery of possession. The suit is filed within 12 years.
Moreover
the suit for declaration and injunction is also been filed within 3 years from
the date of judgment passed in O.S. No.501/1997 and O.S. No.502/1997 on the
file of District Munsif Judicial Magistrate Alandur. Hence, this suit is not
barred by any law.
4. The
learned Principal Subordinate Judge, Chengalpet, by reason of its judgment and
order dated 31.3.2006 rejected the said application of the respondent, opining
:
The
suit property as shown in the schedule to OS No.502 of 2001 is found to be same
as described in the sale deed dated 149/1979 in favour of the plaintiff and its
patent documents of title. Now the plaintiff has described and suit property in
the schedule to the present plaint as per present lie on the ground on the
averments that the boundaries of the property purchased by him under the sale
deed dated 14.9.1979 were wrongly mentioned for a larger extent, as the mistake
crept patent title deed dated 13.3.1964 and that the mistake come to his
knowledge only on 2.11.1998. As held by the Supreme Court in Propet and Kotecha
property VS.S.RI State Association reported in 15(4) CTC 489 averments in the
plaint alone would be looked into while considering an application for
rejection of plaint U.O. 7 Rule 11 CPC and that the plea raised in the written
statement are irrelevant at such stage. In the present case the plea of the
plaintiff that he came to know about the mistake regarding the boundary
description in the sale dated 14.9.1979 only on whether he had knowledge
earlier is question of fact to be considered during the trial in the suit. As
such the plaint on .. is a mixed question of fact and law to be considered
during the trial by casting the issue suitably. Hence the present petition for
rejecting the plaint is balance to be dismissed. The point is answered
accordingly.
5.
Respondent preferred a civil revision petition thereagainst. By reason of the
impugned order, a Division Bench of the High Court reversed the said judgment
of the Trial Court opining that the period of limitation, as per Article 58 of
the Limitation Act, expired in 1997 itself, stating :
A
perusal of the typed set of papers would show that the present suit has been
filed by the respondent/plaintiff for the relief of declaration of title of the
suit property and consequently injunction and in the alternative for recovery
of possession. Article 58 of the Limitation Act provides for three years as the
limitation period to initiate proceedings from the date of cause of action,
whereas Article 65 of the Act prescribes for twelve years for a suit filed for
possession of immovable property or any interest therein based on title. The
earlier suit filed by the petitioners in OS No.502 of 1997 for permanent
injunction has been decreed as against the respondent herein and it is only the
revision petitioners are in continuous possession. The respondent filed the
present suit mainly for declaring his title to the suit property.
Thus,
only Article 58 of the Limitation Act only applicable and not Article 65 of the
Act.
Admittedly,
the suit is filed beyond the period of 3 years as contended by the learned
counsel for the petitioners and, therefore, the plaint itself is liable to be
rejected. 6. Order VII Rule 11(d) of the Code of Civil Procedure reads as under
:
11.Rejection
of plaint.The plaint shall be rejected in the following cases :
(a) to
(c) ...
(d) where
the suit appears from the statement in the plaint to be barred by any law;
(e) to
(f) ...
7. An
application for rejection of the plaint can be filed if the allegations made in
the plaint even if given face value and taken to be correct in their entirety
appear to be barred by any law. The question as to whether a suit is barred by
limitation or not would, therefore, depend upon the facts and circumstances of
each case. For the said purpose, only the averments made in the plaint are
relevant. At this stage, the court would not be entitled to consider the case
of the defence. {See [Popat and Kotecha Property v. State Bank of India Staff Association [(2005) 7 SCC
510]}.
8.
Applicability of one or the other provision of the Limitation Act per se cannot
be decisive for the purpose of determining the question as to whether the suit
is barred under one or the other article contained in the Schedule appended to
the Limitation Act.
9. The
question which was raised before the learned Trial Judge was different from the
question raised before the High Court. Before the learned Trial Judge, as
noticed hereinbefore, the provisions of the Limitation Act were brought in with
reference to the identification of the property. It was not contended that the
suit was barred by limitation in terms of Article 58 of the Limitation Act,
1963. The High Court, therefore, in our opinion, ex facie committed an error in
arriving on the aforementioned finding. The scope of applicability of the
Limitation Act vis-`-vis Order VII Rule 11 of the Code of Civil Procedure has
been considered in some recent decisions of this Court to which we may advert
to.
10. In
Popat and Kotecha Property v. State Bank of India Staff Association [(2005) 7
SCC 510], this Court, inter alia, opined:
Rule
11 of Order VII lays down an independent remedy made available to the defendant
to challenge the maintainability of the suit itself, irrespective of his right
to contest the same on merits. The law ostensibly does not contemplate at any
stage when the objections can be raised, and also does not say in express terms
about the filing of a written statement. Instead, the word shall is
used clearly implying thereby that it casts a duty on the court to perform its
obligations in rejecting the plaint when the same is hit by any of the
infirmities provided in the four clauses of Rule 11, even without intervention
of the defendant. In any event, rejection of the plaint under Rule 11 does not
preclude the plaintiffs from presenting a fresh plaint in terms of Rule
13. It was further opined :
When
the averments in the plaint are considered in the background of the principles
set out in Sopan Sukhdeo case the inevitable conclusion is that the Division
Bench was not right in holding that Order VII Rule 11 CPC was applicable to the
facts of the case. Diverse claims were made and the Division Bench was wrong in
proceeding with the assumption that only the non-execution of lease deed was
the basic issue. Even if it is accepted that the other claims were relatable to
it they have independent existence. Whether the collection of amounts by the
respondent was for a period beyond 51 years needs evidence to be adduced. It is
not a case where the suit from statement in the plaint can be said to be barred
by law. The statement in the plaint without addition or subtraction must show
that it is barred by any law to attract application of Order VII Rule 11. This
is not so in the present case.
11.
However, we may notice that another Division Bench of this Court, in Balasaria
Construction (P) Ltd. v. Hanuman Seva Trust & Ors. [(2006) 5 SCC 658], stated
the law thus :
After
hearing counsel for the parties, going through the plaint, application under
Order VII Rule 11(d) CPC and the judgments of the trial court and the High
Court, we are of the opinion that the present suit could not be dismissed as barred
by limitation without proper pleadings, framing of an issue of limitation and
taking of evidence. Question of limitation is a mixed question of law and fact.
Ex facie in the present case on the reading of the plaint it cannot be held
that the suit is barred by time. The findings recorded by the High Court
touching upon the merits of the dispute are set aside but the conclusion
arrived at by the High Court is affirmed. We agree with the view taken by the
trial court that a plaint cannot be rejected under Order VII Rule 11(d) of the
Code of Civil Procedure.
12. In
the said decision, it may be placed on record, on the question as to whether
Order VII Rule 11(d) can be applied when a suit was filed on the premise that a
suit is barred by limitation, this Court noticed :
This
case was argued at length on 30-8-2005.
Counsel
appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa
Murthy v. Mariyamma for the proposition that a plaint could be rejected if the
suit is ex facie barred by limitation. As against this, counsel for the
respondents relied upon a later judgment of this Court in Popat and Kotecha
Property v. State Bank of India Staff Assn. in respect of the proposition that
Order VII Rule 11(d) was not applicable in a case where a question has to be
decided on the basis of fact that the suit was barred by limitation. The point
as to whether the words barred by law occurring in Order VII Rule
11(d) CPC would include the suit being barred by limitation was not
specifically dealt with in either of these two judgments, cited above. But this
point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman, Khaja Quthubullah v. Govt. of A.P., Vedapalli
Suryanarayana v. Poosarla Venkata Sanker Suryanarayana, Arjan Singh v. Union of
India wherein it has been held that the plaint under Order VII Rule 11(d)
cannot be rejected on the ground that it is barred by limitation. According to
these judgments the suit has to be barred by a provision of law to come within
the meaning of Order VII Rule 11 CPC. A contrary view has been taken in Jugolinija
Rajia Jugoslavija v. Fab Leathers Ltd. , National Insurance Co. Ltd. v. Navrom Constantza
, J. Patel & Co. v. National Federation of Industrial Coop. Ltd. and State
Bank of India Staff Assn. v. Popat & Kotecha Property. The last judgment
was the subject-matter of challenge in Popat and Kotecha Property v. State Bank
of India Staff Assn. This Court set aside the judgment and held in para 25 as
under: (SCC p. 517) 25 . When the averments in the plaint are considered
in the background of the principles set out in Sopan Sukhdeo case the
inevitable conclusion is that the Division Bench was not right in holding that
Order VII Rule 11 CPC was applicable to the facts of the case. Diverse claims
were made and the Division Bench was wrong in proceeding with the assumption
that only the non-execution of lease deed was the basic issue. Even if it is
accepted that the other claims were relatable to it they have independent
existence. Whether the collection of amounts by the respondent was for a period
beyond 51 years needs evidence to be adduced. It is not a case where the suit
from statement in the plaint can be said to be barred by law. The statement in
the plaint without addition or subtraction must show that it is barred by any
law to attract application of Order VII Rule 11. This is not so in the present
case.
13. If
the plaintiff is to be granted a relief of recovery of possession, the suit
could be filed within a period of 12 years. It is one thing to say that whether
such a relief can be granted or not after the evidences are led by the parties
but it is another thing to say that the plaint is to be rejected on the ground
that the same is barred by any law. In the suit has been filed for possession,
as a consequence of declaration of the plaintiffs title, Article 58 will
have no application.
14.
Learned counsel appearing on behalf of the respondent, however, placed strong
reliance upon a decision of this Court in S.M. Karim v. Mst. Bibi Sakina
[(1964) 6 SCR 780] to contend that alternative plea cannot be considered for
arriving at a conclusion that he has been dispossessed.
15.
The law of limitation relating to the suit for possession has undergone a
drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908,
it was obligatory on the part of the plaintiff to aver and plead that he not
only has title over the property but also has been in possession of the same
for a period of more than 12 years. However, if the plaintiff has filed the
suit claiming title over the suit property in terms of Articles 64 and 65 of
the Limitation Act, 1963, burden would be on the defendant to prove that he has
acquired title by adverse possession.
16. In
Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita and Ors. [(2004) 1 SCC 271],
it was held :
By
reason of the Limitation Act, 1963 the legal position as was obtaining under
the old Act underwent a change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiffs claim to
establish his title by adverse possession. {See also P.T. Munichikkanna
Reddy & Ors. v. Revamma & Ors. [(2007) 6 SCC 29]; Binapani Paul v. Pratima
Ghosh & Ors. [(2007) 6 SCC 100]; Kamakshi Builders v. Ambedkar Educational
Society & Ors. [AIR 2007 SC 2191] and Bakhtiyar Hussai (dead) throuth LRs
v. Hafiz Khan & Ors. [CA Nos.497-498/01 decided on 24.09.2007]}.
17. In
S.M. Karim (supra), this Court was considering a question of Benami as also
adverse possession. In the aforementioned context, it was opined :
Adverse
possession must be adequate in continuity, in publicity and extent and a plea
is required at the least to show when possession becomes adverse so that the
starting point of limitation against the party affected can be found.
There
is no evidence here when possession became adverse, if it at all did, and a
mere suggestion in the relief clause that there was an uninterrupted possession
for "several 12 years" or that the plaintiff had acquired "an
absolute title" was not enough to raise such a plea. Long possession is
not necessarily adverse possession and the prayer clause is not a substitute
for a plea. The cited cases need hardly be considered, because each case must
be determined upon the allegations in the plaint in that case. It is sufficient
to point out that in Bishun Dayal v. Kesho Prasad and another (A.I.R. 1940 P.C.
202), the Judicial Committee did not accept an alternative case based on
possession after purchase without a proper plea. {See also Prem Lala Nahata
& Anr. v. Chandi Prasad Sikaria [(2007) 2 SCC 551]}.
Such a
question does not arise for our consideration herein.
18. We
have noticed hereinbefore that the defendant, inter alia, on the plea of
identification of the suit land vis-`-vis the deeds of sale, under which the
plaintiff has claimed his title, claimed possession. The defendant did not
accept that the plaintiff was in possession. An issue in this behalf is,
therefore, required to be framed and the said question is, therefore, required
to be gone into. Limitation would not commence unless there has been a clear
and unequivocal threat to the right claimed by the plaintiff. In a situation of
this nature, in our opinion, the application under Order VII Rule 11(d) was not
maintainable. The contentions raised by the learned counsel for the respondent
may have to be gone into at a proper stage. Lest it may prejudice the
contention of one party or the other at the trial, we resist from making any
observations at this stage.
19.
For the reasons mentioned above, the impugned judgment cannot be sustained. The
same is, therefore, set aside. The appeal is allowed with costs. Counsels
fee assessed at Rs.25,000/- (twenty five thousand).
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